The interconnected economy and the broken leg
The orders reached this industry through six mechanisms that the statute's word "commerce" covers in terms, and the suspension they caused did not end on the day the last stay-home order lifted, because the orders' own reopening steps and sunset dates ran for fifteen months and because the instruments that followed them were orders too. This section states the mechanisms, treats the counterparty orders as orders, states the restoration arithmetic from the orders' own terms, and makes the textual point on which the analysis rests: in the clause, "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter." The general analysis is on this site's interconnected economy and continuing suspension pages; this section applies it to mining, oil and gas and energy services.
The mechanisms
Supply chain and borders
"Commerce" is "the exchange or buying and selling of commodities on a large scale involving transportation from place to place," and, in Chief Justice Marshall's words, "intercourse."227 An order that closed Pennsylvania's machinery plants and Michigan's forges limited the commerce of every mine and rig that bought from them (Ex. PA-002; Ex. MI-011; Ex. MI-026); an order that limited land crossings to essential travel limited the commerce of every importer of Canadian pressure-pumping units and Mexican wellheads for nineteen months (Ex. FED-216; Ex. FED-239; Ex. FED-235; Ex. FED-258); a proclamation that suspended the entry of nonimmigrant engineers limited the commerce of every operator that had hired one (Ex. FED-211; Ex. FED-207); an allocation rule that governed every N95 respirator limited the commerce of every employer whose crews wear them (Ex. FED-075; Ex. FED-078). The Executive Branch itself described the mechanism in a rule that borrowed the Suspension Clause's words to define the importers it would relieve (Ex. AGY-USCG-PORTS-066).
Workforce, schools and child care
An order that closed a school or confined a household kept an employee from a rig, a mine or a right-of-way as surely as an order addressed to the rig. The school and child-care orders of every State in the spring of 2020, the remote and hybrid orders of the fall, the face-covering and quarantine orders of the 2021-22 year and the quarantine orders on exposed and returning persons are orders limiting group meetings and travel in terms (Ex. IL-040; Ex. PA-042; Ex. OR-045; Ex. MET-HOU-038; Ex. MET-DEN-024; Ex. RI-059; Ex. IN-092; Ex. ND-021; Ex. NM-024; Ex. KS-057). The paid-leave mandates and quarantine-leave statutes fixed the terms of the absences they caused (Ex. FED-170; Ex. MI-057).
Travel, tourism and gatherings
The industry's product is consumed in travel, and the orders on travel consumed the demand for it. The Energy Information Administration recorded jet fuel down sixty-four percent and gasoline down twenty-six percent in the second quarter of 2020 "the result of COVID-19-related shutdowns," and the Bakken's regulator recorded rigs falling from fifty-five to thirty-five by July 17, 2020 and completion crews from twenty-five to one (Ex. SEC-23-024; Ex. SEC-23-013; Ex. SEC-23-015; Ex. SEC-23-016). The gathering caps reached every pre-spud meeting, safety stand-down, training session and pre-bid conference (Ex. TX-003; Ex. WY-005; Ex. CO-004; Ex. NM-033; Ex. AZ-084). The shows, schools, hearings and rotations they reached, and the organizers' own notices of cancellation and postponement, are in the Library's meetings records. The traveler quarantines of twenty States confined the crews (Ex. TX-007; Ex. ND-021; Ex. MT-010; Ex. WY-010; Ex. AK-012; Ex. NM-024; Ex. PA-021; Ex. KS-056), and the federal air layer governed every crew flight from February 1, 2021 (Ex. FED-020).
Courts and public offices
The Railroad Commission worked remotely and rolled every deadline (Ex. SEC-23-001; Ex. SEC-23-003; Ex. SEC-23-007); the Oklahoma Corporation Commission heard every matter on Zoom (Ex. SEC-23-026); the Interior Department's bureaus closed their offices and then limited them to a quarter of their occupancy (Ex. FED-386; Ex. FED-270); the courts that record leases and hear royalty disputes operated under emergency orders in every quarter (Ex. ECO-C-061; Ex. TX-040; Ex. NM-066; Ex. KY-058; Ex. MET-HOU-052; Ex. MET-PIT-036). The Notice's own list of orders includes "An order from a local health department mandating a workplace closure for cleaning and disinfecting"; an order closing the office that issues the permit is an order of the same kind.228
Transit
Every employee who rode a bus or train to the yard, the office or the airport rode under the federal conveyance mask order, the airborne-transmission control on every flight, bus, train and hub, from February 1, 2021, and under the transit authorities' own rules before that (Ex. FED-020; Ex. MET-DEN-046; Ex. MET-PIT-042; Ex. MET-SFO-070; Ex. MET-MSY-066); Denver's authority cut service forty percent from April 19, 2020 (Ex. MET-DEN-043).
Health care as counterparty
The clinics that supply the industry's physicals, fit tests and drug screens were closed to elective work in the spring of 2020 (Ex. TX-004; Ex. CO-007; Ex. OK-006; Ex. NM-007; Ex. LA-045; Ex. WV-014; with resumption conditioned on approved plans in West Virginia, Ex. WV-023; Ex. WV-024; and the Wyoming Department of Health's guidance on resuming procedures as context, Ex. WY-011) and bound by the federal standard and the local vaccination orders in 2021 (Ex. FED-080; Ex. MET-LA-023; Ex. MET-DEN-023); Alaska's crisis standards of care governed the North Slope's hospitals in September 2021 (Ex. AK-031).
The counterparty orders as orders
The statute asks whether the operation was suspended "due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings." It says nothing of the addressee. The Notice's own supplier rule applies the statute to an order addressed to a third party: an employer "may be considered to have a full or partial suspension of operations due to a governmental order if ... the business's suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations."229 The United States confirmed the logic to the Ninth Circuit: "a business may be suspended 'due to' a government order addressing a third party."230 The logic is the statute's causation logic and it does not stop at suppliers. An order on the producer that shuts in its wells suspends the service company's operation due to that order; an order on the utility that bars disconnections and defers its capital program suspends the pipeline contractor's operation due to that order; an order on the hotel that caps it at twenty-five percent suspends the crew's rotation due to that order; an order on the school that closes it suspends the employee's shift due to that order. Each is treated here as an order, under the statute's words and under the Notice's own reasoning, and each is in the Library with its issuer, date and operative terms.
The restoration analysis
What the orders compelled this industry to dismantle
The orders of March and April 2020 compelled the industry to stack rigs, disperse completion crews, shut in wells, lay off a third of the support-services workforce, cancel crew rotations, cancel hotel blocks and camps, defer permits and filings, close offices and shops, and cancel the supply contracts that a stacked rig no longer needs. The regulators recorded it: fifty-five rigs on April 14, 2020 and thirty-five on July 17; "the number of active completion crews decreasing from 25 to 1"; 193 wells waiting on completion in July (Ex. SEC-23-013; Ex. SEC-23-014; Ex. SEC-23-015; Ex. SEC-23-016). The Bureau of Labor Statistics recorded it: "Mining lost 46,000 jobs in April, with most of the decline occurring in support activities for mining (-33,000)" (Ex. LAW-206); support activities for mining fell from 313,400 in February 2020 to 233,200 in June and 204,800 in February 2021.231 The Energy Information Administration recorded it: production down from 12.9 to 11.4 million barrels a day with the fewest active rigs in the history of the count (Ex. SEC-23-024; Ex. SEC-23-027).
How long the orders' own reopening steps took
The arithmetic is stated from the orders' own phase steps and sunset dates. New Mexico: lodging at fifty percent from March 24, 2020, twenty-five percent from April 7, fifty percent by June 30, sixty and twenty-five percent from October 16, twenty-five percent from November 16, by county color from December 2 (forty and twenty-five percent at Red, sixty and twenty-five at Yellow, seventy-five and forty at Green, for NM Safe Certified and other lodging), one hundred percent for certified lodging and fifty percent for all other lodging at the Turquoise level added February 24, 2021, every county Turquoise by June 30, 2021, and no cap on any lodging only from July 1, 2021, fifteen months after the first (Ex. NM-006; Ex. NM-010; Ex. NM-023; Ex. NM-033; Ex. NM-039; Ex. NM-041; Ex. NM-054; Ex. NM-057; Ex. NM-060); the quarantine of every arrival from July 1, 2020 (Ex. NM-024) to February 10, 2021 (Ex. NM-051), more than seven months. Pennsylvania: mines and mining contractors marked "No" on the list of March 19, 2020; the Worker Safety Order from April 19, 2020 to May 31, 2021; remote operation "unless not possible" from July 16, 2020 and "unless impossible" from November 27, 2020 to April 3, 2021; the mitigation orders' capacity, gathering, alcohol and workplace rules to May 31, 2021; face coverings to June 28, 2021; the travel order from November 20, 2020 to March 1, 2021; about thirteen and a half months from the Worker Safety Order to the mitigation orders' sunset, and the regulatory suspensions to September 30, 2021 and beyond (Ex. PA-004; Ex. PA-008; Ex. PA-016; Ex. PA-022; Ex. PA-033; Ex. PA-035; Ex. PA-036; Ex. PA-020; Ex. PA-021; Ex. PA-032; Ex. PA-040; Ex. PA-043). Texas: GA-14 to April 30, 2020; GA-12's quarantine to May 1; face coverings and capacity limits from July 3, 2020 to March 10, 2021; every Railroad Commission deadline deferred to December 31, 2020 and due that day, so that the first quarter of 2021 began with every operator working through the deferred obligations of nine months (Ex. TX-008; Ex. TX-007; Ex. TX-022; Ex. TX-025; Ex. TX-029; Ex. SEC-23-003; Ex. SEC-23-006; Ex. SEC-23-007). North Dakota: the arrival quarantine from March 28 to September 21, 2020; face coverings and capacity limits to January 18, 2021; the emergency to April 30, 2021; the rig count from fifty-five to thirty-five in three months, and the crews that dispersed under those orders were not on location on the day the orders lifted (Ex. ND-014; Ex. ND-021; Ex. ND-056; Ex. ND-066; Ex. ND-074; Ex. ND-081). Colorado: stay home from March 26 to April 26, 2020; Safer at Home from April 27; face coverings from July 17, 2020 to June 1, 2021; the dial to April 16, 2021; Public Health Order 20-38 through September 30, 2021 (Ex. CO-013; Ex. CO-019; Ex. CO-031; Ex. CO-057; Ex. CO-051; Ex. CO-091). The federal layer: the land-border limits from March 21, 2020 to November 8, 2021; the entry proclamations from February 2, 2020 to November 8, 2021; the conveyance mask order, the airborne-transmission control on every crew flight and commute, from February 1, 2021 with no end in the period (Ex. FED-216; Ex. FED-200; Ex. FED-209; Ex. FED-020). An operation ordered to run at a fraction of its capacity, with its crews confined, its lodging capped and its deadlines rolled for fifteen months, is not restored to February 2020's capacity on the day the last cap lifts; the Bureau of Labor Statistics' count of support activities for mining stood twenty-six percent below February 2020 in September 2021, and the Bureau wrote on October 8, 2021 that "Mining employment has risen by 59,000 since a trough in August 2020 but is 93,000 below a peak in January 2019" (Ex. LAW-223). The Federal Reserve's account of September 8, 2021 was "supply disruptions and labor shortages," the continuing suspension that the spring-2020 dismantling had caused and that the orders' own steps had not yet reversed (Ex. LAW-211; Ex. LAW-221).
What was still in force when the general restrictions ended
When the last general restriction on this industry ended, the instruments in the third-quarter inventory above were in force: the federal air and border layer (Ex. FED-020; Ex. FED-052; Ex. FED-234; Ex. FED-257), the State OSHA rules of four States (Ex. CA-024; Ex. VA-037; Ex. OR-044; Ex. AGY-ST-LABOR-WORKPLACE-055), New Mexico's COVID-Safe Practices order and its universal face-covering requirement (Ex. NM-060; Ex. NM-067), Louisiana's statewide face-covering order, the airborne-transmission control Proclamation 137 JBE 2021 placed on every person in every indoor workplace in the State (Ex. LA-036), Nevada's Directive 047 (Ex. NV-041), Colorado's Public Health Order 20-38 (Ex. CO-091), the Navajo Nation's orders (Ex. AZ-082), FERC's waiver regime under Order No. 870 (Ex. SEC-23-018; Ex. SEC-23-023), the Oklahoma Corporation Commission's remote hearings (Ex. SEC-23-026), the utility moratoria (Ex. AGY-ST-UTILITIES-HOUSING-AG-007; Ex. WA-014; Ex. NJ-061), the school, quarantine and health-care orders (Ex. IL-040; Ex. RI-059; Ex. FED-080) and the county orders of every basin city (Ex. MET-HOU-052; Ex. MET-DEN-026; Ex. MET-MSY-029; Ex. MET-LA-019), all under the emergency declarations of every principal producing State (Ex. TX-038; Ex. LA-034; Ex. NM-069; Ex. WV-001; Ex. KY-001; Ex. CO-046; Ex. WY-001; Ex. AZ-001; Ex. NV-001; Ex. CA-001; Ex. OR-043; Ex. WA-001), which are cited as their predicates. The instruments are treated as the orders; the declarations as the authority under which they issued. This analysis never says that an expired order suspended anyone by its own force; it says that the suspension the expired order caused continued because of it for the period its compelled dismantling took to reverse, and that the orders listed here were in force while it did.
The text
"During the calendar quarter" modifies "suspended"
The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority." The adverbial phrase "during the calendar quarter" modifies "suspended"; it fixes when the suspension must exist, not when the order must be in effect. Congress did not write "orders in effect during the calendar quarter," and it wrote the same clause in March 2020, again in December 2020 and again in March 2021.232 Tri-State defines suspension to include a "delay," and holds that "due to" is but-for causation: the question is whether, but for the order, the operation would have been delayed, interrupted or terminated.233 The Notice reads the clause the same way: "An employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter," and where an order compels a move to remote operation "some adjustment period is expected" and a "significant delay ... in moving operations" is itself "a partial suspension during that transition period."234 The Service's own Chief Counsel memorandum of June 30, 2023 says that "residual delays caused by a governmental order in place during a prior calendar quarter will not constitute a governmental order in subsequent calendar quarters once the order has been lifted"; the sentence answers a question the statute does not ask, because the statute does not require a governmental order in the subsequent quarter, it requires a suspension in that quarter due to an order, and Chief Counsel's document "may not be used or cited as precedent" by its own terms.235 An employer whose operation was ordered suspended through June 30 was not walking normally on July 1. A rig stacked under an order in April 2020, a completion crew dispersed under a quarantine, a camp emptied under a lodging cap and a permit deferred under a regulator's notice were each a delay the order caused, and each continued because of the order into the quarters that followed, while the orders in the quarter inventories were in force.